Introduction
Section 6 "What may be transferred" explain about that properties which cannot be transferred.
6- What may be transferred.-Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force,- Clause a to i
Clause (a) : Spes successionis
(i) The chance of an heir-apparent succeeding to an estate
Illustration :- A expecting that he will succeed to his grandfather property after his grandfather's death. Here if A transfer that property thinking that he will succeed to the estate in future. So this Transfer will be invalid. This chance of succession i.e succeeding to the property is known as specs successionis and is not transferable.
Illustration :- A, a Hindu owning separate property dies leaving a widow B and a brother C. Here property will goes to B. C has only a bare chance of succession (specs successionis) and this chance
of succeeding to property cannot be transferred.
(ii) the chance of a relation obtaining a legacy on the death of a kinsman
The chance of a relation receiving a legacy is a possibility even more remote than the chance of succession of an heir, and therefore, is not transferable.
(iii) or any other mere possibility of a like nature, cannot be transferred
The expression "any other possibility of a like nature" indicates that the possibility referred to herein must belong to the same category as the chance of an heir apparent, or the chance of a relation obtaining a legacy.
For instance, the possibility of winning a lottery or a prize (car,bike) in a certain competition cannot be transferred.
Clause (b) : Right of re-entry
(b) A mere right of re-entry for breach of a condition subsequent cannot be transferred to any one except the owner of the property affected thereby;
Illustration : A grants a lease of a plot of land to B with a condition that if B shall build upon it, he would re-enter. A transfers to C his right of re-entering in case of breach of the covenant not to build. The transfer is invalid because the right is a personal licence and not transferable.
But if A transfers the whole of his interest in the property, i.e., ownership along with the right of re-entry to C, the transfer shall be valid being a legal incident of the property.
Clause (c): Easement
(c) An easement cannot be transferred apart from the dominant heritage
Easement :- "An easement is a right which the owner or occupier of certain land possesses, as such for the beneficial enjoyment of that land. Examples of easement are right of way, rights of lights and right of water.
Illustration : A, the owner of a house, has a right of way over an adjoining plot of land belonging to B. A transfers this right of way to C. The transfer is a transfer of easement and therefore invalid.
An easement involves the existence of a dominant heritage and a servient heritage. That is, there must be two parcels of land, one (the dominant heritage) to which the benefit of the easement attaches, and another (the servient heritage) which bears the burden of the easement.
Clause (d) : Restricted Interests
(d) All interest in property restricted in its enjoyment to the owner personally cannot be transferred by him.
For instance, if A lent to B a room for his personal use, he cannot transfer his right of enjoyment to another. Under this clause, the following kinds of interest have been held not to be transferable -
(a) A religious office like those of a mutawalli of a wakf.
(b) Emoluments attached to priestly office.
(c) A right of pre-emption.
Clause (dd) : Maintenance
(dd) A right to future maintenance, in whatsoever manner arising, secured or determined, cannot be transferred.
A right to future maintenance is solely for the personal benefit of the person to whom it is granted and therefore cannot be transferred.
Illustration : A and B are related. Court orders that A will pay maintenance expenses for B till her lifetime. The future maintenance of this right cannot be transferred.
Clause (e) : Mere right to sue
(e) A mere right to sue cannot be transferred.
A mere right to sue, as for instance, in respect of damages for breach of contract, or for tort, cannot be transferred.
Illustrations.- (1) B publishes a libel of A. Here A has right to sue B. But if A transfers his right to sue B for damages to C. The transfer is invalid.
(2) A contracts to buy goods from B. On due date A fails to take delivery and B sells the goods in the market at a loss of Rs. 10,000. B transfers the right to recover the damages to C. The transfer is invalid. But other than this an actionable claim can always be transferred.
Clause (f) : Public Office
(f) A public office cannot be transferred, nor can the salary of a public officer, whether before or after it has become payable. Under the clause, a public office cannot be transferred.
Like the office of Judge, Police Officer and IAS cannot be transferred. A public office is held for qualities of person and obviously it would be against public policy and public interest to pemit alienations of public officer.
Clause (g) : Pensions
(g) Stipends allowed to military naval, air force and civil pensioners of the Government and political pensions cannot be transferred.
Under this clause, stipends allowed to military and civil pensioners of Government and political pensions cannot be transferred. The term 'pension' means a periodical allowance or stipend granted to ex-serviceman not in respect of any right of office, but on account of past services.
Clause (h) : Nature of Interest
(h) No transfer can be made (1) in so far as it is opposed to the nature of the interest affected thereby
The expression 'opposed to the nature' means that if the nature of the property to be transferred does not admit of such transfer, the transfer is invalid,
For example, air, water, light, etc. are not transferable because untransferability is inherent in such things.
(2) for an unlawful object or consideration within the meaning of section 23 of the Indian Contract Act, 1872 (9 of 1872) Sub-clause (2) says that no transfer can be made for an unlawful object or consideration within the meaning of Section 23 of the Indian Contract Act.
Under Section 23 of the Contract Act, a consideration or object is unlawful if -
(i) it is forbidden by law, [e.g., a licence granted under the Excise Law or a gun license cannot be transferred), or
(ii) it is of such a nature that it defeats the provisions of any law [e.g., where the object of the renewal of a lease is to secure a higher rent than is permitted by the Rent Act]
(iii) is fraudulent, [e.g., where a person makes a gift of his property with intent to defeat his creditors), or
(iv) it involves or implies injury to the person or property of another, [e.g., A transfers Rs. 500 to B on the condition that he shall murder C that he shall set fire to C's house], or
(v) that court regards it as immoral or opposed to public policy, [e.g., a lease of a house for use as a gambling).
(3) to a person legally disqualified to be transferee
This section lays down that a transfer cannot be made in favour of a person who is disqualified to be a transferee. Under Section 36 of this Act, a Judge, a legal practitioner or an officer connected with courts of justice are disqualified from purchasing any actionable claim. But it does not apply to other kinds of property.
Clause (i) : Untransferable interests
(i) Nothing in this section shall be deemed to authorise a tenant having an untransferable right of occupancy, the farmer of an estate in respect of which default has been made in paying revenue, or the lessee of an estate, under the management of a Court of Wards, to assign his interest as such tenant, farmer or lessee.
(a) Nothing in this Section shall be deemed to authorise a tenant having an untransferable right of occupancy, to assign his interest as such tenant.
(b) Nothing in this Section shall be deemed to authorise the farmer of an estate in respect of which default has been made in paying revenue, to assign his interest as such farmer.
(c) Nothing in this Section shall be deemed to authorise the lessee of an estate, under the management of a Court of Wards, to assign his interest at such lessee.